New Orleans, LA – Civil rights and voting rights groups will be arguing before a three-judge panel from the Fifth Circuit Court of Appeals Tuesday in an ongoing effort to protect Texas voters from an unnecessary and illegal photo ID law. Both a previous panel and the full Fifth Circuit bench have already declared that the law, originally passed in 2011, had the effect of discriminating against African American and Latino voters in the state.

Tuesday’s argument will cover whether the state’s original law (SB 14), was enacted with the intent to discriminate against minority voters. Judges will hear from both sides on whether a new photo ID law passed by the Texas legislature this year (SB 5) can go into effect given its similarities to the original law.

The hearing comes after a 2-1 decision by a different panel of Fifth Circuit judges in September which left in place an interim fix for the troublesome law during elections this year. Unless revisited, the ruling means that the interim remedy can be lifted and SB 5 could go into effect in 2018.

Five court decisions over five years have ruled that the original voter ID law, as written, violates the Voting Rights Act because it makes it harder for African Americans and Latinos to vote. This includes the Fifth Circuit Court of Appeals, which found that the original law ran afoul of Section 2 of the Voting Rights Act. Section 2, among other things, prohibits “voting practices or procedures that discriminate on the basis of race, [or] color.”

The Texas State Conference of the NAACP and the Mexican American Legislative Caucus of the Texas House of Representatives, or MALC, brought a challenge to the Texas law in September 2013. That case was consolidated with other similar cases and is now known as Veasey v. Abbott. The attorneys representing the various plaintiff groups include the Brennan Center for Justice at NYU School of Law, the Lawyers’ Committee for Civil Rights Under Law, the national office of the NAACP, Dechert LLP, The Bledsoe Law Firm, the Law Offices of Jose Garza, the Law Office of Robert S. Notzon, and the Covich Law Firm, P.C.

“Tomorrow’s argument and the ultimate decision in this case will give us a true indication about where our democracy is going,” said Gary Bledsoe, president of the Texas NAACP and an attorney with the Bledsoe Law Firm. “Will all of our citizens be recognized in our democracy or will we permit color coding of the level of voting rights that Texans are entitled to? This battle has gone on for far too long. The 150th anniversary of the 15th Amendment is around the corner, hopefully it still has true meaning.”

“Instances of voter impersonation are so rare that you have a better chance of getting hit by lightning. Still, the Texas legislature passed another strict photo ID law that will leave many Texans behind. The right to vote is fundamental to our democracy, and we can’t allow folks to mess with it to get a partisan advantage,” said Rep. Rafael Anchia, MALC Chairman.

“The Texas legislature intentionally passed a law to keep certain voters from having their voice heard at the polls,” said Myrna Pérez, deputy director of the Brennan Center’s Democracy Program. “It is long past time for the state to fix this, and S.B. 5 doesn’t do that.”

“The Fifth Circuit Court of Appeals has the opportunity to issue the death knell for the latest voter ID law in Texas, and we hope that they do so,” said Kristen Clarke, President and Executive Director of the Lawyers’ Committee for Civil Rights Under Law. “Lower courts have repeatedly recognized that a State cannot escape the consequences of its pernicious conduct without completely eliminating all vestiges of discrimination. That includes Texas, where African-American and Latino voters, who have been the targets of discriminatory photo ID laws.”

“Texas cannot allow this new bill, which a court ruled perpetuates many of the problems with the old bill, to come into effect in January,” said Neil Steiner of Dechert LLP, pro bono counsel for the NAACP Texas State Conference and MALC. “We urge the Fifth Circuit to protect access to the ballot box.”

Background

Plaintiffs have fought Texas’ voter ID law in court for years, arguing that it creates unnecessary obstacles for eligible voters. A federal court in Washington, D.C. first blocked the law in 2012 under Section 5 of the Voting Rights Act, finding that it would have a disproportionate negative impact on minority citizens in Texas. In June 2013, however, the U.S. Supreme Court (in a separate case) gutted core provisions of the Voting Rights Act. Just hours after the Supreme Court’s decision, then-Texas Attorney General Greg Abbott announced the state would implement the voter ID law.

In July 2016, the full Fifth Circuit court of Appeals issued a decision finding the bill has a racially discriminatory effect in violation of Section 2 of the Voting Rights Act, because it disproportionately diminishes African Americans’ and Latinos’ ability to participate in the political process. The appellate court also reversed and remanded the district court’s discriminatory intent finding for further review.

In February 2017, the U.S. District Court heard arguments to determine whether the state intentionally discriminated against minority voters when it passed the original law in 2011. The hearing had previously been scheduled for late-January, but was postponed on Inauguration Day at the request of the Trump administration. The DOJ formally filed to withdraw its intent claim February 27, after five years of fighting the discriminatory purpose of the law alongside civil rights organizations. The court granted DOJ’s withdrawal request on April 3, but made clear that it still considered the question of whether the law was passed with a discriminatory purpose to be a live issue, regardless of the new bill.